Discriminatory motive and the but for test: The proper approach to direct discrimination in Britain and the United States

Michael Connolly*

*Corresponding author for this work

Research output: Contribution to journalArticlepeer-review

Abstract

In recent years, senior judges in Britain have signalled a departure from the longestablished but for test used for direct discrimination cases. They appear to favour instead that the defendant held a discriminatory motive, or even hostility, for liability. In the United States, courts have settled upon a requirement for discriminatory motive, but afforded it such a broad interpretation that is scarcely distinguishable from the but for model, and is a convenient, if inaccurate label. This paper aims to demonstrate, using seven kinds of direct discrimination case, that neither a discriminatory motive doctrine, nor the but for test, are suitable models to analyse direct discrimination claims, and that the proper approach is a simple purposive interpretation of the statutory formula provided in both the UK and the US.

Original languageEnglish
Pages (from-to)37-56
Number of pages20
JournalInternational Journal of Discrimination and the Law
Volume9
Issue number1
DOIs
Publication statusPublished - 1 Sep 2007

Fingerprint

Dive into the research topics of 'Discriminatory motive and the but for test: The proper approach to direct discrimination in Britain and the United States'. Together they form a unique fingerprint.

Cite this